This chapter focuses on Learned Hand's years as Second Circuit Court of Appeals judge and his relationships with fellow judges. The distinctive role Hand played on the Second Circuit during his first ...
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This chapter focuses on Learned Hand's years as Second Circuit Court of Appeals judge and his relationships with fellow judges. The distinctive role Hand played on the Second Circuit during his first decades there emerges clearly in the many hundreds of pre-conference memoranda he preserved. Their most notable characteristic is the sheer joyful thoroughness with which he tackled each case. The court confronted a very wide range of subjects in a seemingly endless flow of cases, many of them of little apparent interest to anyone other than the litigants' lawyers. Yet whatever the subject—patents and copyrights, maritime law, bankruptcy, corporate and commercial law, citizenship and aliens' deportation, criminal law, problems of evidence and jurisdiction—Hand unflaggingly sought to get to the bottom of the facts and the law.Less

The Second Circuit Court Of Appeals In the 1920S and 1930S: Hand as First Among Equals

Gerald Gunther

Published in print: 2010-11-10

This chapter focuses on Learned Hand's years as Second Circuit Court of Appeals judge and his relationships with fellow judges. The distinctive role Hand played on the Second Circuit during his first decades there emerges clearly in the many hundreds of pre-conference memoranda he preserved. Their most notable characteristic is the sheer joyful thoroughness with which he tackled each case. The court confronted a very wide range of subjects in a seemingly endless flow of cases, many of them of little apparent interest to anyone other than the litigants' lawyers. Yet whatever the subject—patents and copyrights, maritime law, bankruptcy, corporate and commercial law, citizenship and aliens' deportation, criminal law, problems of evidence and jurisdiction—Hand unflaggingly sought to get to the bottom of the facts and the law.

This chapter argues that the reputation of the House of Lords for high quality appellate adjudication in private law litigation was well maintained during the last two decades of the 20th century. In ...
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This chapter argues that the reputation of the House of Lords for high quality appellate adjudication in private law litigation was well maintained during the last two decades of the 20th century. In its excursions into the developing field of public law the Law Lords built on the trailblazing of their predecessors. Publicly more exposed than ever in the past, the standing of the Law Lords at the pinnacle of the court hierarchy was, despite its occasional immersion in controversy, well established. Only those acutely sensitive to the implications of the Human Rights Act and its emphasis on the need for judges not only to be but to appear to be wholly independent, could have predicted that within another decade, it would be transformed into a supreme court wholly detached from Parliament.Less

The End of the Twentieth Century: The House of Lords 1982–2000 1

Michael Beloff

Published in print: 2009-08-13

This chapter argues that the reputation of the House of Lords for high quality appellate adjudication in private law litigation was well maintained during the last two decades of the 20th century. In its excursions into the developing field of public law the Law Lords built on the trailblazing of their predecessors. Publicly more exposed than ever in the past, the standing of the Law Lords at the pinnacle of the court hierarchy was, despite its occasional immersion in controversy, well established. Only those acutely sensitive to the implications of the Human Rights Act and its emphasis on the need for judges not only to be but to appear to be wholly independent, could have predicted that within another decade, it would be transformed into a supreme court wholly detached from Parliament.

This chapter details Learned Hand's promotion to the Second Circuit Court of Appeals. By the spring of 1917, after only eight years on the bench, Hand was the most senior judge of his district. He ...
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This chapter details Learned Hand's promotion to the Second Circuit Court of Appeals. By the spring of 1917, after only eight years on the bench, Hand was the most senior judge of his district. He had grown more confident about his talents, and the increasing attention to his rulings by lawyers, fellow judges, and professional publications reinforced his self-esteem. Yet many of his daily chores as a district judge seemed ever more routine and dull. Increasingly, the Second Circuit summoned him to hear appeals, and he found that the appellate work gave him some of his most enjoyable and rewarding days. A permanent seat on the Circuit Court of Appeals, he knew, would assure him of regular work on legal problems of interest and significance. Hand entered the race for promotion in July 1924, and within a month, he learned that the nomination was his. His road to the Second Circuit was assured by the support he received from the judge whom he succeeded there, Julius Mayer. The Senate confirmed Hand, unanimously and without hesitation, on December 20. A few days later, Hand received his commission as circuit judge, and on December 29 he was sworn in by senior judge Charles M. Hough.Less

Promotion To The Second Circuit

Gerald Gunther

Published in print: 2010-11-10

This chapter details Learned Hand's promotion to the Second Circuit Court of Appeals. By the spring of 1917, after only eight years on the bench, Hand was the most senior judge of his district. He had grown more confident about his talents, and the increasing attention to his rulings by lawyers, fellow judges, and professional publications reinforced his self-esteem. Yet many of his daily chores as a district judge seemed ever more routine and dull. Increasingly, the Second Circuit summoned him to hear appeals, and he found that the appellate work gave him some of his most enjoyable and rewarding days. A permanent seat on the Circuit Court of Appeals, he knew, would assure him of regular work on legal problems of interest and significance. Hand entered the race for promotion in July 1924, and within a month, he learned that the nomination was his. His road to the Second Circuit was assured by the support he received from the judge whom he succeeded there, Julius Mayer. The Senate confirmed Hand, unanimously and without hesitation, on December 20. A few days later, Hand received his commission as circuit judge, and on December 29 he was sworn in by senior judge Charles M. Hough.

This chapter discusses the history of the circuit courts of appeals. For the first hundred years, there was no separate set of intermediate courts of appeals, though Congress had experimented with ...
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This chapter discusses the history of the circuit courts of appeals. For the first hundred years, there was no separate set of intermediate courts of appeals, though Congress had experimented with various court configurations to perform their function. Then in the Evarts Act (1891) and the Judges' Bill, Congress created the current appellate court system, intending that the circuit courts of appeals would perform the traditional functions of a common law appellate court—the correction of trial court error and the incidental law-giving function needed to explain the error correction results. The courts functioned this way for nearly eighty years until an explosion of appellate litigation required that these courts change in primary function, staffing, and internal operating procedure.Less

A Brief History of the Circuit Courts

William M. RichmanWilliam L. Reynolds

Published in print: 2012-12-12

This chapter discusses the history of the circuit courts of appeals. For the first hundred years, there was no separate set of intermediate courts of appeals, though Congress had experimented with various court configurations to perform their function. Then in the Evarts Act (1891) and the Judges' Bill, Congress created the current appellate court system, intending that the circuit courts of appeals would perform the traditional functions of a common law appellate court—the correction of trial court error and the incidental law-giving function needed to explain the error correction results. The courts functioned this way for nearly eighty years until an explosion of appellate litigation required that these courts change in primary function, staffing, and internal operating procedure.

The Justices of the Supreme Court function not just as individuals but also as members of a group. Political science models of Supreme Court decision making, however, focus on the legal and policy ...
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The Justices of the Supreme Court function not just as individuals but also as members of a group. Political science models of Supreme Court decision making, however, focus on the legal and policy goals of individual Supreme Court Justices. By not taking into account what role intra-group dynamics may play in Court decision making, political science models provide an incomplete and inaccurate picture. For example, when there is an ideologically simpatico majority coalition on the Court, the preferences of the Court's median Justice often give way to intra-group preferences. In this chapter, we employ social psychology literature to examine both the importance of and the obstacles to group formation. By comparing differences in decision making of the (largely simpatico) New Dal Court and the (very diverse) Rehnquist Court, we illustrate how social psychology can contribute to an understanding of Supreme Court decision making.Less

The Supreme Court, Social Psychology, and Group Formation

Neal DevinsWill Federspiel

Published in print: 2010-01-08

The Justices of the Supreme Court function not just as individuals but also as members of a group. Political science models of Supreme Court decision making, however, focus on the legal and policy goals of individual Supreme Court Justices. By not taking into account what role intra-group dynamics may play in Court decision making, political science models provide an incomplete and inaccurate picture. For example, when there is an ideologically simpatico majority coalition on the Court, the preferences of the Court's median Justice often give way to intra-group preferences. In this chapter, we employ social psychology literature to examine both the importance of and the obstacles to group formation. By comparing differences in decision making of the (largely simpatico) New Dal Court and the (very diverse) Rehnquist Court, we illustrate how social psychology can contribute to an understanding of Supreme Court decision making.

In common law systems, top-level appellate courts hear argument and give full judgements in only a relatively small proportion of cases brought to them. In 2001, the House of Lords disposed of 269 ...
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In common law systems, top-level appellate courts hear argument and give full judgements in only a relatively small proportion of cases brought to them. In 2001, the House of Lords disposed of 269 petitions for leave to appeal, allowing 68 to go forward to a full hearing (25%). The US Supreme Court was presented with 7,924 petitions for criterion and heard argument in 88 cases (1%). This chapter argues that we must take the process and product of case selection seriously. Choosing cases is far more than just a way to limit the workload of the court to a manageable size. The main significance of case selection is that it enables a court to define its constitutional role and power. As such, it is vital that case selection be carried out in accordance with relevant constitutional principles, notably that it is a transparent procedure with opportunities for scrutinizing outcomes.Less

Panning for Gold: Choosing Cases for Top-level Courts

Andrew Le Sueur

Published in print: 2004-03-18

In common law systems, top-level appellate courts hear argument and give full judgements in only a relatively small proportion of cases brought to them. In 2001, the House of Lords disposed of 269 petitions for leave to appeal, allowing 68 to go forward to a full hearing (25%). The US Supreme Court was presented with 7,924 petitions for criterion and heard argument in 88 cases (1%). This chapter argues that we must take the process and product of case selection seriously. Choosing cases is far more than just a way to limit the workload of the court to a manageable size. The main significance of case selection is that it enables a court to define its constitutional role and power. As such, it is vital that case selection be carried out in accordance with relevant constitutional principles, notably that it is a transparent procedure with opportunities for scrutinizing outcomes.

This chapter begins with a discussion of how the judicial House of Lords survived and consolidated its position as the final appellate court during the period 1914–45. It then describes the ...
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This chapter begins with a discussion of how the judicial House of Lords survived and consolidated its position as the final appellate court during the period 1914–45. It then describes the contributions of the House of Lords to private and public law. One of the factors that helped to reinforce the House of Lords as the final appeal court was that it heard appeals from Scotland (in civil cases) and Northern Ireland as well as from England and Wales. In other words, it was the final appeal court for the United Kingdom, and the presence of Scottish Law Lords in particular was important.Less

A Developing Jurisdiction, 1914–45

DGT Williams

Published in print: 2009-08-13

This chapter begins with a discussion of how the judicial House of Lords survived and consolidated its position as the final appellate court during the period 1914–45. It then describes the contributions of the House of Lords to private and public law. One of the factors that helped to reinforce the House of Lords as the final appeal court was that it heard appeals from Scotland (in civil cases) and Northern Ireland as well as from England and Wales. In other words, it was the final appeal court for the United Kingdom, and the presence of Scottish Law Lords in particular was important.

This chapter explores further what judges do in common law cases when they decide in the absence of a controlling precedent or ask themselves whether to overrule or avoid a precedent that does appear ...
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This chapter explores further what judges do in common law cases when they decide in the absence of a controlling precedent or ask themselves whether to overrule or avoid a precedent that does appear to apply. After looking at considerations that are relevant in common law adjudication, it provides a summary analysis of three accounts of the overall task of judges who are resolving common law issues. It then examines questions about how judges should regard precedents that apparently apply, and what it should take to distinguish them or undertake full or partial overruling. The chapter focuses on appellate courts; these are not bound by the legal rulings of the courts below them.Less

Other Bases for Decision : Principles and Consequential Considerations

Kent Greenawalt

Published in print: 2012-11-12

This chapter explores further what judges do in common law cases when they decide in the absence of a controlling precedent or ask themselves whether to overrule or avoid a precedent that does appear to apply. After looking at considerations that are relevant in common law adjudication, it provides a summary analysis of three accounts of the overall task of judges who are resolving common law issues. It then examines questions about how judges should regard precedents that apparently apply, and what it should take to distinguish them or undertake full or partial overruling. The chapter focuses on appellate courts; these are not bound by the legal rulings of the courts below them.

This chapter summarizes the preceding discussions and presents some general lessons from the transformation of circuit courts. The first and most obvious is that there is a steady force pulling on ...
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This chapter summarizes the preceding discussions and presents some general lessons from the transformation of circuit courts. The first and most obvious is that there is a steady force pulling on governmental institutions even in a democracy, the desires of the institution's insiders. Another lesson to be drawn is one about what Hamlet called the “insolence of office,” the arrogance with which public officials ignore criticism of their conduct as they sacrifice the good of the public for their own desires. A third lesson is about the increasingly inequitable distribution of societal benefits; in plain terms, the rich get richer. A final and most troubling lesson is about “judicial activism.” The prevailing view from both the Right and the Left seems to be that the judges are not content to limit themselves to matters purely legal. Instead, they have placed an ideological thumb on the scale in momentous cases to substitute their own policy preferences for those of the legislature.Less

Conclusion

William M. RichmanWilliam L. Reynolds

Published in print: 2012-12-12

This chapter summarizes the preceding discussions and presents some general lessons from the transformation of circuit courts. The first and most obvious is that there is a steady force pulling on governmental institutions even in a democracy, the desires of the institution's insiders. Another lesson to be drawn is one about what Hamlet called the “insolence of office,” the arrogance with which public officials ignore criticism of their conduct as they sacrifice the good of the public for their own desires. A third lesson is about the increasingly inequitable distribution of societal benefits; in plain terms, the rich get richer. A final and most troubling lesson is about “judicial activism.” The prevailing view from both the Right and the Left seems to be that the judges are not content to limit themselves to matters purely legal. Instead, they have placed an ideological thumb on the scale in momentous cases to substitute their own policy preferences for those of the legislature.

This chapter examines the opinions of the Texas Appellate Courts concerning the children taken into custody by state authorities after the raid on the Fundamentalist Church of Jesus Christ Latter Day ...
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This chapter examines the opinions of the Texas Appellate Courts concerning the children taken into custody by state authorities after the raid on the Fundamentalist Church of Jesus Christ Latter Day Saints (FLDS) at the Yearning for Zion Ranch. It first considers contemporary concerns about children in new religious movements (NRMs) and other minority religions that often find themselves subject to efforts of social control by authorities of the dominant society. It then discusses two problems that are associated with accusations about child abuse in NRMs and other minority religions in America: the very definition of child abuse and the issue of “collective child abuse.” It also looks at a number of cases that highlight the difficulties dealing with allegations of child abuse in communal religious groups. It also presents a time line and brief description of the unfolding events regarding the FLDS raid and court actions taken in Texas. It suggests that the FLDS secured an apparent victory based on the Appellate Court ruling in Texas but at the expense of basic civil liberties.Less

Pyrrhic Victory? : An Analysis of the Appeal Court Opinions Concerning the FLDS Children

Tamatha L. SchreinertJames T. Richardson

Published in print: 2011-10-01

This chapter examines the opinions of the Texas Appellate Courts concerning the children taken into custody by state authorities after the raid on the Fundamentalist Church of Jesus Christ Latter Day Saints (FLDS) at the Yearning for Zion Ranch. It first considers contemporary concerns about children in new religious movements (NRMs) and other minority religions that often find themselves subject to efforts of social control by authorities of the dominant society. It then discusses two problems that are associated with accusations about child abuse in NRMs and other minority religions in America: the very definition of child abuse and the issue of “collective child abuse.” It also looks at a number of cases that highlight the difficulties dealing with allegations of child abuse in communal religious groups. It also presents a time line and brief description of the unfolding events regarding the FLDS raid and court actions taken in Texas. It suggests that the FLDS secured an apparent victory based on the Appellate Court ruling in Texas but at the expense of basic civil liberties.